Welcome to 11KBW's Education Law Blog, and thank you for taking the time to visit us.  This is a blog about education law, maintained by 11KBW's Education Law Practice Group.
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Inter-authority recoupment

March 13th, 2013 by Rachel Kamm

Following on from Paul‘s post about hot education topics in February, the Inter-authority Recoupment (England) Regulations 2013 have now been made and will come into force on 1 April 2013.

These regulations are about whether one local authority should contribute towards the costs of a SEN statement for which another local authority has responsibility. It is worth noting that they do not affect which local authority is responsible for the statement, which continues to depend on which area the child is in (see section 323 of the Education Act 1996 and the Guidance on Looked After Children with Special Educational Needs placed out-of-authority). Where a local authority is responsible for a statement, that responsibility can only transfer to another local authority if the child has moved from the area of the original local authority to the area of the new local authority (see paragraph 7 of Schedule 27 to the 1996 Act and regulation 23 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001).

Recoupment is a separate issue. Until the new regulations come into force, the current position is that the Education (Inter-authority Recoupment) Regulations 1994 provide for a local authority which is responsible for a SEN statement to recoup the costs of that statement from another local authority to which the child belongs. The Education (Areas to which Pupils and Students Belong) Regulations 1996 set out the test for deciding to which local authority a child belongs.

That scheme will change from 1 April 2013 in England. The new regulations will amend the Education (Inter-authority Recoupment) Regulations 1994 so that those Regulations only apply to recoupment where the home authority is in Wales (with one exception). As the covering letter for the consultation on the draft regulations explained:

In future schools that provide for pupils with a statement of SEN and certain other high cost needs will get base funding from their maintaining local authority, or if they are not a maintained school from the Education Funding Agency (EFA), while funding above the base funding level (“top-up funding”) will pass directly between the local authority where the pupil is resident and the school.  We have made adjustments between the baselines of authorities in England in order to make this new system cost neutral for authorities. …

The proposed regulations will continue to require recoupment between English local authorities in the case of looked after children …

We are also proposing that the recoupment arrangements should remain in place for authorities in England in so far as they relate to pupils from England educated in Wales, and pupils from Wales educated in England. …”

Hopefully the changes will simplify the current system, which relies on local authorities agreeing between themselves on the sum to be recouped and with disputes resolved by the Secretary of State. However, no doubt there will be other  issues arising from the new funding regime to keep the lawyers busy.

Rachel Kamm

School Capital Funding

March 6th, 2013 by Rachel Kamm

Those of you who have followed the progress of  Building Schools for the Future and the Priority Schools Building programme, may be interested in the latest announcement about capital funding for schools.  Mr Gove has made a Ministerial statement about capital funding of around £4billion that will be made available to create new school places and to carry out maintenance and repair work to existing school buildings. The Department explains that the announcement includes details on the allocation of:

  • £1.6 billion of basic need funding for 2013-15 to local authorities to provide additional school places where needed in their area;
  • •£595 million of maintenance capital for 2013-14 to local authorities to support the needs of the schools that they maintain and for the Sure Start children’s centres in their area;
  • •£392 million of maintenance capital for academies for 2013-14;
  • •£154 million of locally-coordinated VA programme capital for 2013-14 to support the maintenance capital needs of voluntary-aided schools;
  • •£200 million of devolved formula capital for schools;
  • • a total of £65 million for sixth-form college maintenance and devolved formula capital funding for 2013-14, and £80 million basic need funding for 16 to 19 demographic pressures for 2013-15; and
  • • a total of £15 million funding for Independent Specialist Providers (ISPs) for 2013-15.

Information is also now available about:

  • applications for the Targeted Basic Need programme, for funding for local authorities in England to build high quality new Academy and Free schools on their own sites and to permanently expand existing good and outstanding Academies and maintained schools (deadline noon on 30 April 2013);

Rachel Kamm

The duty to give former looked after children assistance with education

February 19th, 2013 by Rachel Kamm

The High Court has found in R (Kebede) v Newcastle City Council that local authorities have a duty (and not a discretion) to make a grant in relation to educational expenses and that this could include a grant for tuition fees.

The two claimant brothers were former relevant children for the purposes of sections 23B and 23C of the Children Act 1989 i.e. they were over eighteen and (a) had been looked after by the local authority up until their 18th birthday or (b) they had been looked after by the local authority for a prescribed period when they were 16 and/or 17. They wanted to go to university, but were ineligible for student loans because they were not British citizens (although they had discretionary leave to remain in the UK). They asked the local authority to assist under section 23C of the Children Act 1989, which included provision that the local authority had a duty to give them assistance by making a grant to enable them to meet expenses connected to their education, to the extent that their educational needs required it.

The local authority refused to assist the brothers, arguing that it had a discretion to assist but that, in any event, it only had a power to assist with expenses connected with education and this did not include a student loan. The Court rejected both of these arguments.

Mr Timothy Straker QC held that there was a duty on the local authority to make a grant to the extent that a former relevant child’s educational needs required it. Further, that grant could include tuition fees; a principal expense associated with education was the cost of tuition. The judge also rejected an argument that it was relevant that the local authority had limited resources. Having allowed the claim, he refused to make a mandatory order requiring the local authority to make a grant to the brothers.  Instead, the decision was quashed and a fresh decision is to be made in light of the judgment, with the local authority deciding whether or not the brothers’ educational needs require the grant.

The judgment is not available as yet.

Rachel Kamm

A busy day for Mr Gove

July 19th, 2011 by Rachel Kamm

Michael Gove has made a statement today covering a number of education funding topics. There are various decisions, one ‘minded to’ decision and three consultation exercises.

First, the decisions. On schools capital, there will be £500 million to help local authorities provide extra school places to meet the extra pressures caused by increased birth rates. It is announced that there will also be a new (privately financed) school rebuilding programme, targeting those schools in the worst condition; applications can be submitted in October. School building regulations will be pared down significantly with the intention of cutting both costs and red tape.  The Government has said that it will carry out a condition survey of all school buildings so that funding can be better targeted and that it will also improve the design of schools to achieve better buildings and better value.

The ‘almost a decision’ is that  “The Government is minded not to fund the [Building Schools for the Future] projects which were the subject of a judicial review earlier this year, subject to further representations from the authorities involved“.

The three consultation exercises are on:

1. The recommendations of Sebastian James’s review on school building - the recommendations will be broadly accepted subject to consultation on the details and implementation;

2. Proposals for a new, fairer and more transparent school funding system - the current funding scheme for maintained schools will continue in 2012-13; and

3. On LACSEG academy funding -  the webpage for the consultation paper states that “The Secretary of State for Education, in consultation with the Secretary of State for Communities and Local Government, has agreed to reconsider the appropriate reduction to local authority funding to be made to reflect the transfer of central services from local authorities to academies and Free Schools. This consideration will apply to the transfers for both the 2011-12 and 2012-13 financial yearsWe want to ensure that academies and local authorities are funded fairly and we welcome the opportunity to seek views on this reconsideration from local authorities, the Local Government Association and London Councils.

The accompanying letter to local authorities explains that there will also be an open consultation on the 16-19 funding formula and methodology in the coming months.